Alberta Tories circle the wagons over Redford conflict claim

Alberta Premier Alison Redford may face a ruling on a charge of contempt of Parliament as early as today — although the opposition’s allegation that she misled the legislature seems unlikely to come to anything if for no other reason than the government has developed a finely attuned talent for splitting hairs.

While Toronto mayor Rob Ford’s troubles dominate much of the news, Alberta too has been managing its own conflict-of-interest scandal. This one concerns far greater sums of money, and the political fortunes of Ms. Redford.

In 2010, Ms. Redford, then justice minister, announced Alberta would follow other provinces in seeking compensation from tobacco companies for costs to the public healthcare system. Within months, the government put out a request to a handful of firms seeking lawyers interested in taking on the $10 billion file. The work would be paid by contingency fees, meaning the winning firm, if successful, would get a significant cut of the spoils.

The last name on the logo, which belongs to Robert Hawkes, who also happens to be the ex-husband of Ms. Redford.

The firm was retained in June 2011, but it was announced on May 30 of this year. At the time, the government claimed the process was open and competitive. But the CBC sought additional information via a Freedom of Information and Protection of Privacy Act (FOIPP) request. The documents came back last. Hundreds of them.

The documents were heavily redacted, and little insight could be gleaned about the fairness of the process. What was clear was that Ms. Redford appeared to have taken a very direct role in selecting the consortium that was eventually chosen to lead the suit. But we’ll get to that into a minute.

In the legislature on Wednesday, Ms. Redford remained adamant: “when the decision was made by the government of Alberta as to who to retain on this file, I was not the Justice minister. I was not a member of cabinet. I was an MLA running to be the leader of this party.”

It is on this point that the opposition then accused her of contempt, or of wilfully misleading her fellow honourable members.

This scandal, it should be noted, concerns conflict of interest in only the political sense. Even if Ms. Redford handed her ex-husband’s firm a $10 billion contract on a sterling silver tea service, this is unlikely to be actionable under the current conflict of interest laws. Still, given even the perceived conflict of interest, the question remains as to why Ms. Redford did not appear to recuse herself from the process that eventually hired the Tobacco Recover Lawyers.

The Alberta government has gone to great lengths to defend itself and its leader on this point. At first, current Justice Minister Jonathan Denis said conflict of interest guidelines didn’t apply to ex-spouses (it doesn’t.) The government also said Ms. Redford was not justice minister when the decision was made — she left cabinet in February 2011 to run for the party’s leadership, about a month after former premier Ed Stelmach resigned.

Verlyn Olson succeeded her as Justice Minister.

Mr. Olson, a credible figure, defended the premier in the legislature last week. Standing before a heckling crowd, he explained that sure, Ms. Redford had selected a preferred candidate, but the decision hadn’t been finalized.

When Mr. Olson entered his new ministry in February 2011, his staff handed him a stack of binders and briefing notes, including the tobacco litigation file.

“Nobody ever said to me, to the best of my recollection, the cards have already been dealt, you’re stuck with a certain law firm and you have no choice to go a different direction. On the other hand, certainly, it was identified to me that a firm had been identified as a firm that was the preferred candidate at the time. I was assured that a very thorough process had been gone through to get to that point.

“As far as I knew, as far as I understood, in my conversation with my department, it was my call as to whether or not we finally went ahead with this firm.”

Upon hearing that statement, two questions continue to stand out about the whole debacle. The first is how closely Mr. Olson’s account matches the FOIPP records and JSS Barristers’ own written record of events.

According to the FOIPP documents, the government put out a request for expressions of interest in October 2010. These were due by Nov. 15. Several consortia applied. The applicants made presentations to the government between Nov. 19 and 29, 2010.

On Dec. 14, 2010 Ms. Redford signed a memo that stated all the firms interviewed were capable of doing the job: “No consortium stood above the others.”

However: “Considering the perceived conflicts of interest, actual conflicts of interest, the structure of the contingency arrangement and the importance of a ‘made in Alberta’ litigation plan, the best choice for Alberta will be the International Tobacco Recovery Lawyers.”

Three days later, a draft of a letter to be sent to the unsuccessful consortia had been written. They were sent shortly afterward. On Dec. 22, a staff member wrote in an email that Carsten Jensen had been called and informed his group’s presentation had been successful.

On Jan. 6, 2011, Mr. Jensen, from JSS Barristers on behalf of the Tobacco Recovery Lawyer consortium, emailed a staff member in the minister’s office: “We were very happy to learn that we will be working with you on the health care recovery claim. The first step obviously will be for us to finalize the terms of retainer.”

A week after that, the minister’s own staff wrote in a briefing to the deputy minister: “Shortly before Christmas, Minister Redford selected the International Tobacco Recovery Lawyers (the Jensen consortium).”

Ms. Redford resigned as justice minister in February 2011.

In the wake of the eruptions in the legislature, JSS Barristers sent a letter to the CBC pointing to several inaccuracies in the public broadcaster’s stories on the subject. The firm wrote that after they were selected as the preferred firm, a national law firm was hired to negotiate a retainer. This went on for six months, until June 2011, long after Ms. Redford resigned as minister.

“[Tobacco Recovery Lawyers] submitted a bid, which Minister Redford selected as being the preferable bid to begin negotiating a retainer,” the letter read. “The decision to negotiate is not a retainer. All of the documentation confirms that our engagement was subject to agreeing to terms on a retainer, which took 6 months.”

The letter went on to point out that Ms. Redford divorced Mr. Hawkes in 1991 and that their contact since then had been sporadic. He was picked to lead her transition team when she became leader of the PC party in October 2011 — several months after the JSS Barristers’ successful bid was tendered. “They had little contact for years.”

The last question raised by Mr. Olson’s speech in the legislature last week is this: What if Ed Stelmach had never resigned? What if Ms. Redford had never pursued the party’s top position?

If Ms. Redford had remained Minister of Justice, would she have recused herself from the deal at the last possible moment, before the final retainer agreement was signed?

If the answer is no, then her decision to favour this consortium should be as defensible today as it was in December of 2010. There should have been no reason to trot Mr. Olson out to do the sad bear dance for the legislature.

If the answer is yes, that she would have recused herself before the decision became really, really final — and the government’s own defence seems to rely on this interpretation — then whether hers’ or Mr. Olson’s physical signature is on the last slip of paperwork is immaterial. She should never have been involved with the process.

The opposition parties have stated they plan to file a complaint to the province’s Ethics Commissioner. What kind of investigation this will lead to is up for debate.

By his own admission, commissioner Neil Wilkinson is more a prudish lapdog than a sharp-toothed pitbull. This is the same man who justified giving a losing MLA a soft landing in the ministry he used to run by saying: “he’s within the family, the government family.”